SPEECH 


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MR.^CALHOUN, OF SOUTH CAROLINA, 


OUT 


THE VETO POWER: 


DELIVERED 


IN THE SENATE OF THE UNITED STATES, 


February 28 , 1842 . 



WASHINGTON: 
PRINTED BY BLAIR & RIVES. 
1842 















' 






•: * 




SPEECH OF MR. JOHN C. CALHOUN, 

ON 

THE VETO POWER; 

Delivered in the Senate , February 28, 1842. 


Mr. Calhoun said : The Senator from Kentucky, in support of his 
amendment, maintained that the people of these States constitute a nation; 
that the nation has a will of its own; that the numerical majority of the 
whole was the appropriate organ of its voice ; and that whatever derogated 
from it, to that extent departed from the genius of the government, and set 
up the will of the minority against the majority. We have thus presented, 
at the veryjhreshold of the discussion, a question of the deepest import, 
not only as it regards the subject under consideration, but the nature and 
character of our government; and that question is, Are these propositions 
of the Senator true?* If they be, then he admitted the argument against 
the veto would be conclusive; not, however, for the reason assigned by 
him, that it would make the voice of a single functionary of the govern¬ 
ment (the President) equivalent to that of some six Senators and forty mem¬ 
bers of the other House ; but, for the far more decisive reason, according to 
his theory, that the President is not chosen by the voice of the numerical 
majority, and does not, therefore, according to his principle, represent truly 
the will of the nation. 

It is a great mistake to suppose that he is elected simply pn the principle 
of numbers. They constitute, it is true, the principal element in his elec¬ 
tion ; but not the exclusive. Each State is, indeed, entitled to as many 
votes in his election, as it is to representatives in the other House—that is, 
to its federal population ; but to these, two others are added, having no 
regard to numbers for their representation in the Senate, which greatly in¬ 
creases the relative influence of the small States compared to the large, in 
the Presidential election. What effect this latter element may have on the 
numbers necessary to elect a President, may be made apparent by a very 
short and simple calculation. 

The population of the United States, in federal numbers, by the late 
census, is 15,908,376. Assuming that sixty-eight thousand, the number 
reported by the committee of the other House, will be fixed on for the ratio 
of representation there, it will give, according to the calculation of the com¬ 
mittee, two hundred and twenty-four members to the other House. Add 
fifty-two, the number of the Senators, and the electoral college will be 


* Mr. Clay here interrupted Mr. Calhoun, and said that he meant a majority according to 
the forms of the Constitution. , . . 0 t .. , 

Mr. Calhoun, in return, said he had taken down the words of the Senator at the time, and 
would vouch for the correctness of his statement. The Senator not only laid down the propo¬ 
sitions as stated, but he drew conclusions from them against the President’s veto, which could 
only be sustained on the principle of the numerical majority. In fact, his course at the extra 
session, and the gr.ounds assumed both by him and his colleague in, this discussion, hadltheir 
origin in the doctrines embraced in that proposition. 







4 


found to consist of two hundred and seventy-six, of which one hundred 
and thirty-nine is a majority. If nineteen of the smaller States, excluding 
Maryland, be taken, beginning with Delaware and ending with Kentucky 
inclusive, they will be found to be entitled to one hundred and forty votes, 
one more than a majority, with a federal population of only 7,227,869; 
while the seven other States, with a population of 8,680,507, would be en¬ 
titled to but one hundred and thirty-six votes, three less than a majority, 
with a population of almost a million and a half greater than the others. 
Of the one hundred and forty electoral votes of the smaller States, thirty- 
eight would be on account of the addition of two to each State for their re¬ 
presentation in this body, while of the larger there would be but fourteen 
on that account; making a difference of twenty-four votes on that account, 
being two more than the entire electoral vote of Ohio, the third State in 
point of numbers in'the Union. 

The Senator from Kentucky, with these facts, but acts in strict conform¬ 
ity to his theory of the government, in proposing the limitation he has on 
the veto power; but as much cannot be said in favor of the substitute he 
has offered. The argument is as conclusive against the one as the other, 
or any other modification of the veto that could possibly be devised. It 
goes farther, and is conclusive against the executive department itself, as 
elected ; for there can be no good reason offered why the will of the nation, 
if there be one, should not be as fully and perfectly represented in that de¬ 
partment as in the legislative. 

But it does not stop there. It would be still more conclusive, if possible, 
against this branch of the government. In constituting the Senate, num¬ 
bers are totally disregarded. The smallest State stands on a perfect equal¬ 
ity with the largest,—Delaware with her seventy-seven thousand, with 
New York with her two millions and a half. Here a majority of States 
control, without regard to population ; and fourteen of the smallest States, 
with a federal population of but 4,064,457, little less than a fourth of the 
whole, can, if they unite, overrule the twelve others with a population of 
11,844,919. Nay, more ; they could virtually destroy the government, and 
put a veto on the whole system, by refusing to elect Senators; and yet 
this equality among States, without regard to numbers, including the 
branch where it prevails, would seem to be the favorite with the Constitu¬ 
tion. It cannot be altered without the consent of every State ; and this 
branch of the government where it prevails, is the only one that participates 
in the powers of all the others. As a part of the legislative department, it 
has full participation with the other in all matters of legislation, except 
originating money bills ; while it participates with the Executive in two 
of its highest functions, that of appointing to office and making treaties; 
and in that of the Judiciary, in being the high court before which all im¬ 
peachments are tried. 

But we have not yet got to the end of the consequences. The argument 
would be as conclusive against the Judiciary as against the Senate, or the 
Executive and his veto. The judges receive their appointments from the 
Executive and the Senate—the one nominating, and the other consenting 
to and advising the appointment; neither of which departments, as has 
been shown, is chosen by the numerical majority. In addition, they hold 
their office during good behavior, and can only be turned out by impeach¬ 
ment ; and yet they have the power, in all cases in law and equity brought 
before them, in which an act of Congress is involved, to decide on its con¬ 
stitutionality— that is, in effect, to pronounce an absolute veto. 


5 


If, then, the Senator’s theory be correct, its clear and certain result, if 
carried out in practice, would be to sweep away, not only the veto, but the 
Executive, the Senate, and the Judiciary, as now constituted ; and to leave 
nothing standing in the midst of the ruins but the House of Representatives, 
where only, in the whole range of the government, numbers exclusively 
prevail. But, as desolating as would be its sweep, in passing over the 
government, it would be far more destructive in its whirl over the Con¬ 
stitution. There it would not leave a fragment standing amidst the ruin 
in its rear. 

In approaching this topic, let me premise, (what all will readily admit,) 
that if the voice of the people may be sought for any where with confi¬ 
dence, it may be in the Constitution, which is conceded by all to be the 
fundamental and paramount law of the land. If, then, the people of these 
States do really constitute a nation, as the Senator supposes ; if the nation 
has a will of its own, and if the numerical majority of the whole is the only 
appropriate and true organ of that will, we may fairly.expect to find that 
will, pronounced through the absolute majority, pervading every part of 
that instrument, and stamping its authority on the whole. Is such the 
fact? The very reverse. Throughout the whole—from first to last— 
from beginning to the end—in its formation, adoption, and amendment, 
there is not the slightest evidence, trace, or vestige of the existence of the 
facts on which the Senator’s theory rests; neither of the nation, nor its 
will, nor of the numerical majority of the whole, as its organ, as 1 shall 
next proceed to show. 

The convention which formed it was called by a portion of the States ; 
its members were all appointed by the States ; received their authority from 
their separate States ; voted by States in forming the Constitution ; agreed 
to it, when formed, by States ; transmitted it to Congress to be submitted 
to the States for their ratification; it was ratified by the people of each 
State in convention, each ratifying by itself, for itself, and bound exclusive¬ 
ly by its own ratification ; and by express provision it was not to go into 
operation, unless nine out of the twelve States should ratify, and then to be 
binding only between the States ratifying. It was thus put in the power 
of any four States, large or small, without regard to numbers, to defeat its 
adoption ; which might have been done by a very small proportion of the 
whole, as will appear by reference to the first census. That census was 
taken very shortly after the adoption of the Constitution, at which time the 
federal population of the then twelve States was 3,462,279, of which the 
four smallest, Delaware, Rhode Island. Georgia, and New Hampshire, with 
a population of only 241,490, (something more than the fourteenth part of 
the whole,) could have defeated the ratification. Such was the total dis¬ 
regard of population in the adoption and formation of the Constitution. 

It may, however, be said,fit is true, that the Constitution is the work of 
the States, and that there was no nation prior to its adoption ; but that its 
adoption fused the people of the States into one, so as to make a nation of 
what before constituted separate and independent sovereignties. Such an 
assertion would be directly in the teeth of the Constitution, which says that, 
when ratified, “ it should be binding,” (not over the States ratifying, for 
that would imply that it was imposed by some higher authority ; nor 
between the individuals composing the States, for that would imply that 
they were all merged in one ; but) “ between the States ratifying the same 
and thus, by the strongest implication, recognising them as the parties to the 
instrument, and as maintaining their separate and independent existence as 
States, after its adoption. But let that pass. I need it not to rebut the 




6 


Senator’s theory—to test the truth of the assertion, that the Constitution 
has formed a nation of the people of these States. I go back to the grounds 
already taken,—that if such be the fact—if they really form a nation, since 
the adoption of the Constitution, and the nation has a will, and the numeri¬ 
cal majority is its only proper organ, in that case the mode prescribed for 
the amendment of the Constitution would furnish abundant and conclusive 
evidence of the fact. But here again, as in its formation and adoption, 
there is not the slightest trace or evidence that such is the fact; on the 
contrary, most conclusive to sustain the very opposite opinion. 

There are two modes in which amendments to the Constitution may be 
proposed. The one, such as that now proposed, by a resolution to be 
passed by two-thirds of both Houses ; and the other, by a call of a conven¬ 
tion, by Congress, to propose amendments, on the application of two-thirds 
of the States ; neither of which gives the least countenance to the theory 
of the Senator. In both cases, the mode of ratification, which is the mate¬ 
rial point, is the same, and requires the concurring assent of three-fourths 
of the States, regardless of population, to ratify an amendment. Let us 
now pause for a moment to trace the effects of this provision. 

There are now twenty-six States, and the concurring assent, of course, 
of twenty States, is sufficient to ratify an amendment. It then results that 
twenty of the smaller States, of which Kentucky would be the largest, are 
sufficient for that purpose, with a population, in federal numbers, of only 
7,652,097, less by several hundred thousand than the numerical majority 
of the whole, against the united voice of the other six, with a population of 
8,216,279, exceeding the former by more than half a million. And yet this 
minority, under the amending power, may change, alter, modify, or destroy 
every part of the Constitution, except that which provides for an equality 
of representation of the States in the Senate ; while, as if in mockery and 
derision of the Senator’s theory, nineteen of the larger States, with a pop¬ 
ulation, in federal numbers, of 14,526,073, cannot, even if united to a man, 
alter a-letter in the Constitution, against the seven others, with a popula¬ 
tion of only 1,382,303; and this, too, under the existing Constitution, 
which is supposed to form the people of these States into a nation. Finally, 
Delaware, with a population of little more than 77,000, can put her veto on 
all the other States, on a proposition to destroy the equality of the States in 
the Senate. Can facts more clearly illustrate the total disregard of the nu¬ 
merical majority, as well in the process of amending, as in that of forming 
and adopting the Constitution ? 

All this must appear anomalous, strange, and unaccountable, on the 
theory of the Senator; but harmonious and easily explained on the oppo¬ 
site ; that ours is a union, not of individuals, united by what is called a so¬ 
cial compact—for that would make it a nation ; nor of governments—for that 
would have formed a mere confederacy, like .the one superseded by the 
present Constitution ; but a union of States, founded on a written, positive 
compact, forming a Federal Republic, with the same equality of rights 
among the States composing the union, as among the citizens composing the 
States themselves. Instead of a nation, we are in reality an assemblage of 
nations, or peoples, (if the plural noun may be used where the language af¬ 
fords none,) united in their sovereign character immediately and directly 
by their own act, but without losing their separate and’ independent 
existence. 

It results from all that has been stated, that either the theory of the Sen¬ 
ator is wrong, or that our political -system is throughout a profound and 
^radical error. If the latter be the case, then that complex system of ours, 


7 


consisting of so many parts, but blended, as was supposed, into one harmo¬ 
nious and sublime whole, raising its front on high and challenging the ad¬ 
miration of the world, is but a misshapen and disproportionate structure 
that ought to be demolished to the ground, with the single exception of the 
apartment allotted to the House of Representatives. Is the Senator prepared 
to commence the work of demolition ? Does he believe that all other parts 
of this complex structure are irregular and deformed appendages ; and that 
if they were taken down, and the government erected exclusively on the 
will of the numerical majority, it would effect as well, or better, the great ob¬ 
jects for which it was instituted: “ to establish justice; ensure domestic 
tranquillity; provide for the common defence; promote the general wel¬ 
fare ; and secure the blessings of liberty to ourselves and our posterity V 9 
Will the Senator—will any one—can any one—venture to assert that? 
And if not, why not? There is the question, on the proper solution of 
which hangs not only the explanation of the veto, but that of the real 
nature and character of our complex, but beautiful and harmonious system 
of government. To give a full and systematic solution, it would be neces¬ 
sary to descend to the elements of political science, and discuss principles 
little suited to a discussion in a deliberative assembly. I waive the attempt, 
and shall content myself with giving a much more matter-of-fact solution. 

It is sufficient, for that purpose, to point to the actual operation of the 
government, through all the stages of its existence, and the many and im¬ 
portant measures which have agitated it from the beginning; the success 
of which one portion of the people regarded as essential to their prosperity 
and happiness, while other portions have viewed them as destructive of 
both. What does this imply, but a deep conflict of interests, real or sup¬ 
posed, between the different portions of the community, on subjects of the 
first magnitude—the currency, the finances, including taxation and dis¬ 
bursements; the bank, the protective tariff, distribution, and many others; on 
all of which the most opposite and conflicting views have prevailed ? And 
what would be the effect of placing the powers of the government under the 
exclusive control of the numerical majority—of 8,000,000 over 7,900,000 ; 
of six States over all the rest—but to give the dominant interest, or combi¬ 
nation of interests, an unlimited and despotic control over all others ? What, 
but to vest it with the power to administer the government for its exclusive 
benefit, regardless of all others, and indifferent to their oppression and 
wretchedness ? And what, in a country of such vast extent and diversity 
of condition, institutions, industry, and productions, would that be, but to 
subject the rest to the most grinding despotism and oppression ? But what 
is the remedy? It would be but to increase the evil, to transfer the power 
to a minority, to abolish the House of Representatives, and place the con¬ 
trol exclusively in the hands of the Senate—in that of the four millions, in¬ 
stead of the eight. If one must be sacrificed to the other, it is better that 
the few should be to the many, than the many to the few. 

What then is to be done, if neither the majority nor the minority, the 
greater nor less part, can be safely trusted with the exclusive control ? What 
but to vest the powers of the government in the whole—the entire people ; 
to make it in truth and reality the government of the people, instead of the 
government of a dominant over a subject part, be it the greater or less— 
of the whole people—self-government; and, if this should prove impos¬ 
sible in practice, then to make the nearest approach to it, by requiring the 
concurrence in the action of the government, of the greatest possible num¬ 
ber consistent with the great ends for which government was instituted 
justice and security, within and without. But how is that to be effected 1 


8 


Not certainly by considering the whole community as one, and taking its 
sense as a whole by a single process, which, instead of giving the voice of 
all, can but give that of a part. There is but one way by which it can pos¬ 
sibly be accomplished; and that is, by a judicious and wise division and or¬ 
ganization of the government and community, with reference to its different 
and conflicting interests, and by taking the sense of each part separately, and 
the concurrence of all as the voice of the whole. Each may be imperfect of 
itself; but if the construction be good, and all the keys skilfully touched, 
there will be given out, in one blended and harmonious whole, the true and 
perfect voice of the people. 

But on what principle is such a division and organization to be made to 
effect this great object, without w hich it is impossible to preserve free and 
popular institutions? To this no general answer can be given. It is the 
work of the wise and experienced, having full and perfect knowledge of the 
country and the people in every particular for whom the government is in¬ 
tended. It must be made to fit; and when it does, it will fit no other, and 
will be incapable of being imitated or borrowed. Without, then, attempting 
to do what cannot be done, I propose to point out how that which I have 
stated has been accomplished in our system of government, and the agency 
the veto is intended to have in effecting it. 

I begin with the House of Representatives. There each State has a 
representation according to its federal numbers, and, when met, a majority 
of the whole number of members controls its proceedings; thus giving to 
the numerical majority the exclusive control throughout. The effect is to 
place its proceedings in the power of eight millions of people over all the 
rest, and six of the largest States, if united, over the other twenty; and the 
consequence, if the House was the exclusive organ of the voice of the 
people, would be the domination “of the stronger over the weaker interests 
of the community, and the establishment of an intolerable and oppressive 
despotism. To find the remedy against what would be so great an evil, 
we must turn to this body. Here an entirely different process is adopted 
to take the sense of the community. Population is entirely disregarded, 
and States, without reference to the number of people, are made the basis 
of representation; the effect of which is to place the control here in a ma¬ 
jority of the States, which, had they the exclusive power, would exercise it 
as despotically and oppressively as would the House of Representatives. 

Regarded, then, separately, neither truly represents the sense of the com¬ 
munity, and each is imperfect of itself; but when united, and the concur¬ 
ring voice of each is made necessary to enact laws, the one corrects the 
defects of the other; and, instead of the less popular derogating from the 
more popular, as is supposed by the Senator, the two together give a more 
full and perfect.utterance to the voice of the people than'either could sepa¬ 
rately. Taken separately, six States might control the House; and a little 
upwards of four millions might control the Senate, by a combination of the 
fourteen smaller States; but by requiring the concurrent votes of the two,, 
the six largest States must add eight others to have the control in both 
bodies. Suppose, for illustration, they should unite with the eight smallest,, 
(which would give the least number by which an act could pass both Houses,) 
it will be found, by adding the population in federal numbers of the six 
largest to the eight smallest States, that the least number by which an act 
can pass both Houses, if the members should be true to those they repre¬ 
sent, would be 9,788,570 against a minority of 6,119,797, instead of 8,000,000 
against 7,900,000, if the assent of the most popular branch alone were re¬ 
quired. 


9 


This more full and perfect expression of the voice of the people by the 
concurrence of the two, compared to either separately, is a great advance 
towards a full and perfect expression of their voice; but, great as it is, it 
falls far short, and the framers of the Constitution were accordingly not sat¬ 
isfied with it. To render it still more perfect, their next step was to re¬ 
quire the assent of the President, before an act of Congress could become 
a law; and, if he disapproved, to require two-thirds of both Houses to 
overrule his veto. We are thus brought to the point immediately under 
discussion, and which, on that account, claims a full and careful examina¬ 
tion. 

One of the leading motives for vesting the President with this high power 
was, undoubtedly, to give him the means of protecting the portion of the pow¬ 
ers allotted to him by the Constitution, against the encroachment of Congress. 
To make a division of power effectual, a veto in one form or another is 
indispensable. The right of each to judge for itself of the extent of the 
power allotted to its share, and to protect itself in its exercise, is what in 
reality is meant by a division of power. Without it, the allotment to each- 
department would be a mere partition, and no division at all. Acting un¬ 
der this impression, the framers of the Constitution have carefully provided 
that his approval should be necessary, not only to the acts of Congress, 
but to every resolution, vote, or order, requiring the consent of the two 
Houses, so as to render it impossible to elude it by any conceivable device. 
This of itself was an adequate motive for the provision, and, were there no 
other, ought to be a sufficient reason for the rejection of this resolution. 
Without it, the division of power between the'legislative and executive de¬ 
partments would have been merely nominal. 

But it is not the only motive. There is another and deeper, to which 
the division itself of the government into departments is subordinate ;—to 
enlarge the popular basis, by increasing the number of voices necessary to 
its action. As numerous as are the voices required to obtain the assent of 
the people through the Senate and the House to an act, it was not thought 
by the framers of the Constitution sufficient for the action of the govern¬ 
ment in all cases. Nine thousand eight hundred, as large as is the number, 
were regarded as still too few, and six thousand one hundred too many, to 
remove all motives for oppression; the latter being not too few to be plun¬ 
dered, and the former not too large to divide the spoils of plunder among. 
Till the increase of number's on one side, and the decrease on the other, 
reaches that point, there is no security for the weaker against the stronger, 
especially in so extensive a country as ours. Acting in the spirit of these 
remarks, the authors of the Constitution, although they deemed the concur¬ 
rence of the Senate and the House as sufficient, with the approval of the 
President, to the enactment of laws in ordinary cases, yet, when he dis¬ 
sented, they deem it a sufficient presumption against the measure to require 
a still greater enlargement of the popular basis for its enactment. With 
this view, the assent of two-lhirds of both Houses was required to overrule 
his veto; that is, eighteen States in the Senate, and a constituency of ten 
million six hundred thousand in the other House. 

But it may be said that nothing is gained towards enlarging the popular 
basis of the government by the veto power; because the number necessary 
to elect a majority to the two Houses, without which the act could not pass, 
would be sufficient to elect him. That is true. But he may have been 
elected by a different portion of the people; or, if not, great changes may 
take place during his four years, both in the Senate and the House, which 
may change the majority that brought him into power, and with it the 


10 


measures and policy to be pursued. In either case, he might find it neces¬ 
sary to interpose his veto to maintain his views of the Constitution, or the 
policy of the party of which he is the head, and which elevated him to 
power. 

But a still stronger consideration for vesting him with the power may be 
found fin the difference of the manner of his election, compared with that 
of the members of either House. The Senators are elected by the vote of 
the Legislatures of the respective States, and the members of the House by 
the people, who, in almost all the States, elect by districts. In neither is 
there the least responsibility of the members of any one State, to the Legis¬ 
lature or people of any other State. They are, as far as their responsibility 
may be concerned, solely and exclusively under the influence of the States 
and people who respectively elect them. Not so the President. The 
votes of the whole are counted in his election, which makes him more or 
less responsible to every part—to those who voted against him, as well as 
those to whom he owes his election; which he must feel sensibly. If he 
should be an aspirant for a re-election, he will desire to gain the favorable 
opinion of States that opposed him, as well as to retain that of those which 
voted for him. Even if he should not be a candidate for re-election, the 
desire of having a favorite elected, or maintaining the ascendency of his 
party, may have, to a considerable extent, the same influence over him. 
The effecr, in either case, would be to make him look more to the interest 
of the whole —to soften sectional feelings and asperity—to be more of a 
patriot than the partisan of any particular interest; and, through the influ¬ 
ence of these causes, to give a more general character to the politics of the 
country, and thereby render the collision between sectional interests less 
fierce than it would be if legislation depended solely on the members of the 
two Houses, who owe no responsibility but to those who elected them. 
The same influence acts even on the aspirants for the Presidency, and is 
followed to a very considerable extent by the same softening and general¬ 
izing effects. In the case of the President, it may lead to the interposing 
of his veto against oppressive and dangerous sectional measures, even 
when supported by those to whom he owes his election. But, be the cause 
of interposing his veto what it may, its effect in all cases is to require a 
greater body of constituency, through the legislative organs, to put the gov¬ 
ernment in action against it—to require another key to be struck, and to 
bring out a more full and perfect response from (he voice of the people. 

There is still another impediment, if not to the enactment of laws, to their 
execution, to be found in the judiciary department. I refer to the right 
of the courls, in all cases coming before them in law or equity, where an 
act of Congress comes in question, to decide on its unconstitutionally; 
which, if decided against the law in the Supreme Court, is, in effect, a per¬ 
manent veto. But here a difference must be made between a decision 
against the constitutionality of a law of Congress and that of States. The 
former acts as a restriction on the powers of this government, but the lat¬ 
ter as an enlargement. 

Such are the various processes of taking the sense of the people through 
the divisions and organization of the different departments of the govern¬ 
ment; all of which, acting through their appropriate organs, are intended 
to widen its basis and render it more popular, instead of less, by increasing 
the number necessary to put it in action, and having for their object to pre¬ 
vent one portion of the community from aggrandizing or enriching itself at 
the expense of the other, and to restrict the whole to the sphere intended 
by the framers of the Constitution. Has it effected these objects? Has 


It 


it prevented oppression and usurpation on the part of the government ? 
Has it accomplished the objects for which the government was ordained, 
as enumerated in the preamble of the Constitution ? Much—very much— 
certainly has been done, but not all. Many instances might be enume¬ 
rated, in the history of the government, of«>the violation of the Constitu¬ 
tion—-of the assumption of powers not delegated to it—of the perversion 
of those delegated to uses never intended—and of their being wielded by 
the dominant interest, for the time, for its aggrandizement, at the expense 
of the rest of the community instances that may be found in every pe¬ 
riod of its existence, from the earliest to the latest, beginning with the 
bank and bank connexion at its outset, and ending with the distribution 
act at the late extraordinary session. How is this to be accounted for? 
What is the cause ? 

The explanation and cause will be found in the fact, that, as fully as 
the sense of the people is taken in the action of the government, it is not 
taken fully enough. For, after all that has been accomplished in that re¬ 
spect, there are but two organs through which the voice of the commu¬ 
nity acts directly on the government, and which, taken separately, or in 
combination, constitute the elements of which it is composed : the one is 
the majority of the States regarded in their corporate character as bodies 
politic, which, in its simple form, constitutes the Senate; and the other is 
the majority of the people of the States, of which, in its simple form, the 
House of Representatives is composed. These combined, in the propor¬ 
tions already stated, constitute the executive department, and that de¬ 
partment and the Senate appoint the judges, who constitute the Judiciary. 
But it is only in their simple form in the Senate and the other House that 
they have a steady and habitual control over the legislative acts of the 
government. The veto of the Executive is rarely interposed—not more 
than about twenty times during the period of more than fifty years that 
the government has existed. Their effects have been beneficially felt, but 
only casually, at long intervals, and without steady and habitual influence 
over the action of the government. The same remarks are substantially 
applicable to what, for the sake of brevity, may be called the veto of the 
Judiciary—the right of negativing a law, for the want of constitutionality, 
when it comes in question, in a case before the courts. 

The government, then, of the Union, being under no other habitual and 
steady control but these two majorities, acting through this and the other 
House, is, in fact, placed substantially under the control of the portion of the 
community which the united majorities of the two Houses represent for the 
time, and which may consist of but fourteen States, with a federal population 
of less than ten millions, against a little more than six, as has been al¬ 
ready explained. But, as large as is the former, and as small as is the lat¬ 
ter, the one is not large enough, in proportion, to prevent it from plundering, 
under the forms of law, and the other small enough from being plundered; 
and hence the many instances of violation of the Constitution—of usurpation, 
of powers perverted and wielded for selfish purposes, which the history of the 
government affords. They furnish proof conclusive that the principle of plun¬ 
der, so deeply implanted in all governments, has not been eradicated in 
ours, by all the precaution taken by its framers against it. 

But, in estimating the number of the constituency necessary to control the 
majority in the two Houses of Congress at something less than ten millions, 
I have estimated it altogether too high, regarding the practical operation of 
the government. To form a correct conception of its practical operation in 


12 


this respect, another element, which has in practice an important influence, 
must be taken into the estimate, and which 1 shall next proceed to explain, 

Of the two majorities, which, acting either separately or in combination, 
control the government, the numerical majority is by far the most influen¬ 
tial. It has the exclusive control in the House of Representatives, and pre¬ 
ponderates more than five to one in the choice of the President, assuming 
that the ratio of representation will be fixed at sixty eight thousand under 
the late census. It also greatly preponderates in appointment of the judges, 
the right of nominating having much greater influence in making appoint¬ 
ments than that of advising and consenting. Prom these facts, it must be 
apparent that the leaning of the President will be to that element of power 
to which he mainly owes his elevation, and on which he must principally 
rely to Secure his re-election, or maintain the ascendancy of the party and 
its p v olicy, the head of which he usually is. This leaning of his must have 
a powerful effect on the inclination and tendency of the whole government. 
In his hands are placed, substantially, all the honors and emoluments of the 
government; and these, when greatly increased, as they are and ever must 
be when the powers of the government are greatly stretched and increased, 
must give the President a corresponding influence over not only the mem¬ 
bers of both Houses, but also public opinion, and, through that, a still more 
powerful indirect influence over them ; and thus they may be brought to 
sustain or oppose, through his influence, measures which otherwise they 
would have opposed or sustained, and the whole government be made to 
lean in the same direction with the Executive. 

From these causes the government, in all of its departments, gravitates 
steadily towards the numerical majority, and has been moving slowly to¬ 
wards it from the beginning ; sometimes, indeed, retarded, or even stopped 
or thrown back, but. taking any considerable period of time, always ad¬ 
vancing towards it. That it begins to make near approach to that fatal 
point, ample proof may be found in the oft-repeated declaration of the mover 
of this resolution, and of many of his supporters at the extraordinary ses¬ 
sion,—that the late Presidential election decided all the great measures 
which he so ardently pressed through the Senate. Yes, even here—in this 
chamber, in the Senate, which is composed of the opposing element, and 
on which the only effectual resistance to this fatal tendency exists that is to 
be found in the government—we are told that the popular will, as expressed 
in the Presidential election, is to decide not only the election, but every 
measure which may be agitated in the canvass in order to influence the re¬ 
sult. When what was thus boldly insisted on comes to be an established 
principle of action, the end will be near. 

As the government approaches nearer and nearer to the one absolute and 
single power, the will of the greater number, its action will become more 
and more disturbed and irregular; faction, corruption, and anarchy, wjll 
more and more abound; patriotism will daily decay, and affection and 
reverence for the government grow weaker and weaker, until the final 
shock occurs, when the system will rush to ruin, and the sword take the 
place of law and constitution. 

Let me not be misunderstood. I object not to that structure of the gov¬ 
ernment which makes the numerical majority the predominant element: it 
is, perhaps, necessary that it should be so in all popular constitutional gov¬ 
ernments like ours, which excludes classes. It is necessarily the exponent 
of the strongest interest, or combination of interests, in the community ; and 
it would seem to be necessary to givejt the preponderance, in order to infuse 


13 


into the government the necessary energy to accomplish the ends for which 
it was instituted. The great question is. How is due preponderance to be 
given to it, without subjecting the whole, in time, to its unlimited sway? 
which brings up the question, Is there aitywhere, in our complex system 
of government, a guard, check, or contrivance, sufficiently strong to arrest 
so fearful a tendency of the government ? Or, to express it in more direct and 
intelligible language, Is there anywhere in the system a more full and per¬ 
fect expression of the voice of the people of the States calculated to coun¬ 
teract this tendency to the concentration of all. the powers of the govern¬ 
ment in the will of the numerical majority, resulting from the partial and 
imperfect expression of their voice through its organs ? 

Yes, fortunately, doubly fortunately, there is; not only a more full and 
perfect, but a full and perfect expression to be found in the Constitution, 
acknowledged by all to be the fundamental and supreme law of the land. 
It is full and perfect, because it is the expression of the voice of each State, 
adopted by the separate assent of each, by itself, and for itself; and is the 
voice of all, by being that of each component part, united and blended into 
one harmonious whole. But it is not only full and perfect, but as just as it 
is full and perfect; for, combining the sense of each, and therefore all, there 
is nothing left on which injustice, or oppression, or usurpation can operate. 
And, finally, it is as supreme as it is just; because, comprehending the will 
of all, by uniting that of each of the parts, there is nothing within or above 
to control it. It is, indeed, the voxpopuli vox Dei ; the creating voice that 
called the system into existence, and of which the government itself is but 
a creature, clothed with delegated powers to execute its high behests. 

We are thus brought to a question of the deepest import, and on which 
the fate of the system depends. How can this full, perfect, just, and su¬ 
preme voice of the people, imbodied in the Constitution, be brought to bear 
habitually and steadily in counteracting the fatal tendency of the govern¬ 
ment to the absolute and despotic control of the numerical majority? Or 
—if I may be permitted to use so bold an expression—how is this, the 
Deity of our political system, to be successfully invoked, to interpose its all- 
powerful creating voice to save from perdition the creature of its will and 
the work of its hand ? If it cannot be done, ours, like all free governments 
preceding it, must go the way of all flesh ; but if it can be, its duration may 
be from generation to generation, to the latest posterity. To this all-im¬ 
portant question 1 will not attempt a reply at this time. It would lead me 
far beyond the limits properly belonging to this discussion. I descend 
from the digression nearer to the subject immediately at issue, in order to 
reply to an objection to the veto power, taken by the Senator from Virginia 
on this side the chamber, [Mr. Archer.] 

He rests his support of this resolution on the ground that the object in¬ 
tended to be effected by the veto has failed ; that the framers of the Con¬ 
stitution regarded the legislative department of the government as the one 
most to be dreaded ; and that their motive for vesting the Executive with 
the veto, was to check its encroachments on the other departments: but 
that the Executive, and not the Legislature, had proved to be the most 
dangerous; and that the veto had become either useless or mischievous, by 
being converted into a sword to attack, instead of a shield to defend, as was 
originally intended. 

1 make no issue with the Senator, as to the correctness of his statement. 
I assume the facts to be as he supposes; not because I agree with him, but 
pimply with the view of making my reply more brief. 


14 


Assuming, then, that the executive department has proved to be the 
more formidable, and that it requires to be checked, rather than to have the 
power of cheeking others, the jfrrst inquiry on that assumption should be 
into the cause of its increase of power, in order to ascertain the seat and the 
nature of the danger ; and the next, whether the measure proposed—that 
of divesting it of the veto, or modifying it as proposed—would guard against 
the danger apprehended. 

I begin with the first; and in entering on it, assert, with confidence, that 
if the Executive has become formidable to the liberty or safety of the coun¬ 
try, or other departments of the government, the cause is not in the Con¬ 
stitution, but in the acts and omissions of Congress itself. 

According to my conception, the powers vested in the President by the 
Constitution are few and effectually guarded, and are not of themselves at 
all formidable. In order to have a just conception of the extent of his powers, 
it must be borne in mind that there are but two classes of power known 
to the Constitution ; and they are powers that are expressly granted, and 
those that are necessary to carry the granted powers into execution. Now, 
by a positive provision of the Constitution, all powers necessary to the ex¬ 
ecution of the granted powers are expressly delegated to Congress, be they 
powers granted to the legislative, executive, or judicial department; and 
can only be exercised by the authority of Congress, and in the manner 
prescribed by law. This provision will be found in what is called the re¬ 
siduary clause, which declares that Congress shall have power “-to make 
all laws which shall be necessary and proper to carry into execution the 
foregoing powers,” (those granted to Congress,) “ and all other powers 
vested by this Constitution in the government of the United States, or in 
any department or officer thereof.” A more comprehensive provision can¬ 
not be imagined. It carries with it all powers necessary and proper to the 
execution of the granted powers, be they lodged where they may; and 
vests the whole, in terms not less explicit, in Congress. And here let me 
add, in passing, that the provision is as wise as it is comprehensive. It de- 
posites the right of deciding what powers are necessary for the execution 
of the granted powers where, and where only, it can be lodged with safety— 
in the hands of the la f w-making power ; and forbids any department or 
officer of the government from exercising any power not expressly author¬ 
ized by the Constitution or the laws—thus making ours emphatically a gov¬ 
ernment of law and constitution. 

Having now shown that the President is restricted by the Constitution 
to powers expressly granted to him, and that if any of his granted powers 
be such that they require other powers to execute them, he cannot exercise 
them without the authority of Congress, 1 shall now show that there is not 
one power vested iq him that is any way dangerous, unless made so by the 
acts or permission of Congress. I shall take them in the order they stand 
in the Constitution. 

He is, in the first place, made commander-in-chief of the army and navy 
of the United States, and the militia, when called into actual service. Large 
and expensive military and naval establishments, and numerous corps of 
militia, called into service, would no doubt increase very dangerously the 
power and patronage of the President; but neither can take place but by 
the action of Congress. Not a soldier can be enlisted, a ship of war built, 
nor a militiaman called into service, without its authority ; and very for¬ 
tunately our situation is such, that there is no necessity, and, probably, will 
&e none, why his power and patronage should be dangerously increased by 
either of those means. 


15 


K 


He is next vested with the power to make treaties, and to appoint officers, 
with the advice and consent of the Senate; and here again his power can 
only be made dangerous by the action of one or both Houses of Congress. 

. In the formation of treaties, two-thirds of the Senate must concur ; and it 
is difficult to conceive of a treaty that could materially enlarge his powers, 
that would not require an act of Congress to carry it into effect. The ap¬ 
pointing power may, indeed, dangerously increase his patronage, if officers 
be uselessly multiplied and too highly paid; but if such should be the 
case, the fault would be in Congress, by whose authority exclusively they 
can be created or their compensation regulated. 

But much is said in this connexion of the power of removal, justly ac¬ 
companied by severe condemnation of the many and abusive instances of 
the use of the power, and the dangerous influence it gives the President; 
in all of which I fully concur. It is, indeed, a corrupting and dangerous 
power, when officers are greatly multiplied and highly paid, and when it 
is perverted from its legitimate object to the advancement of personal or 
party purposes. But 1 find no such power in the list of powers granted to 
the Executive, which is proof conclusive that it belongs to the class neces¬ 
sary and proper to execute some other power, if it exists at all, which none 
can doubt; and, for reasons already assigned, cannot be exercised without 
authority of law. If, then, it has been abused, it must be because Congress 
has not done its duty in permitting it to be exercised by the President with¬ 
out the sanction of law authorizing its exercise, and guarding against the 
abuses to which it is so liable. 

The residue of the list are rather duties than rights—that of recommend¬ 
ing to Congress such measures as he may deem expedient; of convening 
both Houses on extraordinary occasions; of adjourning them when they 
cannot agree on the time ; of receiving ambassadors and other ministers; 
of taking care that the laws be faithfully executed, and commissioning the 
officers of the United States. Of all these, there is but one which claims 
particular notice, in connexion with the point immediately under considera¬ 
tion ; and that is, his power as the administrator of the laws. But what¬ 
ever power he may have in that capacity depends on the action of Con¬ 
gress. If Congress should limit its legislation to the few great subjects 
confided to it; so frame its laws as to'leave as little as possible to discre¬ 
tion, and take care to see,that they are duly and faithfully executed, the 
administrative powers of the President would be proportionally limited, and 
divested of all danger. But if, on the contrary, it should extend its legis¬ 
lation in every direction ; draw within its action subjects never contem¬ 
plated by the Constitution ; multiply its acts, create numerous offices, and 
increase the revenue and expenditures proportionally, and, at the same 
time, frame its laws vaguely and loosely, and withdraw, in a great measure, 
its supervising care over their execution, his power would indeed become 
truly formidable and alarming. Now I appeal to the Senator and his friend, 
the author of this resolution,"whether the growth of Executive power has 
not been the result of such a course on the part of Congress. I ask them 
whether his power has not in fact increased, or decreased, just in proportion 
to the increase or decrease of the system, of legislation, such as has been 
described ? What was the period of its maximum increase, but the very pe¬ 
riod which they have so frequently and loudly denounced as the one most 
distinguished for the prevalence of executive power and usurpation? 
Muclf of that power certainly depended on the remarkable man then at the 
head^of that department; but much—far more—onthe system of legislation 


which the author of this resolution had built up with so much zeal and la¬ 
bor, and which carried the powers of the government to a point beyond 
that to which it had ever before attained, drawing many and important 
powers into its vortex, of which the framers of the Constitution never 
dreamed. And here let me say to both of the Senators, and the party of 
which they are prominent members, that they labor in vain to bring down 
executive power, while they support the system they so zealously advocate. 
The power they complain of is but its necessary fruit. Be assured, that as 
certain as Congress transcends its assigned limits, and usurps powers never 
conferred, or stretches those conferred beyond the proper limits, so surely 
will the fruits of its usurpation pass into the hands of the Executive. In 
seeking to become master, it but makes a master in the person of the Presi¬ 
dent. It is only by confining itself to its allotted sphere, and a discreet use 
of its acknowledged powers, that it can retain that ascendency in the gov* 
erment which the Constitution intended to confer on it. 

Having now pointed out the cause of the great increase of the executive 
power on which the Senator rested his objection to the veto power ; and 
having satisfactorily shown, as I trust I have, that, if it has proved danger¬ 
ous in fact, the fault is not in the Constitution, but in Congress,—I would 
next ask him, in what possible way could the divesting the President of his 
veto, or modifying it as he proposes, limit his power? Is it not clear that, 
so far from the veto being the cause of the increase of his power, it would 
have acted as a limitation on it, if it, had been more freely and frequently 
used ? If the President had vetoed the original bank, the connexion with 
the banking system, the tariffs of ’24 and ’28, and the numerous acts ap¬ 
propriating money for roads, canals, harbors, and a long list of other mea¬ 
sures not less unconstitutional, would his power have been half as great as 
it now is? He has grown great and powerful, not because he used his ve¬ 
to, but because he abstained from using it. In fact, it is difficult to imagine 
a case in which its application can tend to enlarge his power, except it be 
the case of an act intended to repeal a law calculated to increase his pow¬ 
er, or to restore the authority of one which, by an arbitrary construction of 
his power, he has set aside. 

Now let me add, in conclusion, that this is a question, in its bearings, of 
vital importance to that wonderful and sublime system of government 
which our patriotic ancestors established, not so much by their wisdom, as 
wise and experienced as they were, as by the guidance of a kind Provi¬ 
dence, who, in his divine dispensation, so disposed events as to lead to the 
establishment of a system of government wiser than those who framed it. 
The veto, of itself, as important as it is, sinks into nothing compared to the 
principle involved. It is but one, and that by no means the most consider¬ 
able, of those many wise devices which I have attempted to explain, and 
which were intended to strengthen the popular basis of our government, and 
resist its tendency to fall under the control of the dominant interest, acting 
through the mere numerical majority. The introduction of this resolution 
may be regarded as one of the many symptoms of that fatal tendency, and 
of which we had such fearful indications in the bold attempt at the late ex¬ 
traordinary session, of forcing through a whole system of measures of the 
most threatening and alarming character, in the space of a few weeks, on 
the ground that they were all decided in the election of the late Presi¬ 
dent ; thus attempting to substitute the will of a majority of the people, in 
the choice of a Chief Magistrate, as the legislative authority of the Union, 
in lieu of the^beautiful and profound system established by the Constitution, 


